Counter Staff Hold Keys to Court Access

Within the past 18 months New Zealand’s Supreme Court judges decreed all judges have inherent jurisdiction to suppress the public court record.  Concurrently, the powerful Rules Committee were successful in granting  court staff powers to prevent court filings they view are abusive notwithstanding the documents meet legal requirements for filing.

The authority giving NZ judges power to impose suppression orders against the world at large is the October 2016 Supreme Court ruling Erceg v Erceg.  Essentially Erceg declares that while every other Commonwealth country considers such common law judicial powers unlawful the contrarian position is “soundly based” in NZ.  The five Supreme Court of New Zealand justices stated, “While New Zealand may be something of an outlier in relying on inherent powers in this way, we consider that what has been understood to be the position in New Zealand for more than 35 years is soundly based and should be maintained.”

No doubt inherent judicial powers in New Zealand is soundly based upon something other than the rule of law which the Supreme Court justices conceded is violated by these powers, but the Supreme Court failed altogether to identify what it is.

Relevantly back in 2012, the judicial lobby in New Zealand – claiming it had 100% support of the nation’s judges – made submissions to Parliament opposing the Register of Pecuniary Interest of Judges Bill on the premise “The judicial process is a high visibility process” where transparency and the public nature of court proceedings provided sufficient discipline against patronage and corruption by judges.   The Bill would have required judges to divulge their individual financial interests to prevent conflicts of interest.   The judges’ submissions conceded the law held value for other countries but they were fiercely opposed to it as a threat to their independence and unnecessary in New Zealand.

The irony of every New Zealand judge jointly and actively opposing the proposed law was lost upon the lawmakers who can only dream of such unanimous independence among their lot.

The Register of Pecuniary Interest of Judges bill, after initially receiving broad support, was killed in 2016 after every political party withdrew their support.

The powers granted lay court staff to prevent court access have more obscure origins.  They are provided by Rule 5.35A of the High Court Rules and no lawyer kiwisfirst has polled was aware of this rule change which came into effect September 2017.  Specifically the new rule allows court staff to refuse processing a new proceeding, and instead direct the papers to a judge without notice or any reasons given.  The judge can then strike out the proceeding without notice or hearing from the parties under another new rule – 5.35B.  The wave to due process comes in the form of a statement the judge must put in their strike out order, advising their order is appealable.

Senior Courts Director Tania Ott responded this week to an Official Information Act request advising the courts do not hold information on how often these new rules have been applied.

The portent of granting extra-judicial powers is seen in the leapfrogging of legal rights since.  High Court Judges Churchman and Duffy wasted no time unlocking this pandora’s box with ex parte declarations that appeals are also captured by the rule.

One appeal is a District Court ruling in Nottingham v (censored by court suppression order).  “Peter” from the High Court refused to accept it for filing.  When challenged by the appellant, Peter emailed “Pursuant to (rule 5.35A), I referred the proceedings on or about 8 November 2017 to Duffy J who was then the Duty Judge for the week…  The papers were referred to the Judge under the rule with no discussion or reference to any particular aspect of the papers and no reasons for the referral were recorded by me.”

Without notice or hearing Justice Ailsa Duffy  upheld the denial on the ground the 25 page appeal was prolix (i.e rambling or wordy).  Nottingham told kiwisfirst that he will be lodging an appeal and laying a misconduct complaint against the judge.

The case underpinning the appeal is riddled with court secrecy orders.  An ancillary claim, Nottingham v Solicitor General, holds a public distinction by virtue of a High Court ruling mid-2017 which overturned a conviction for contempt of court against the plaintiff in the District Court.  In that judgment Wylie J upheld the finding that the appellant committed contempt by “wilfully insulting” the judge but threw out the conviction by District Court Judge Russell Collins on the ground Mr Nottingham was not given a chance to be heard before the conviction.  Collins’ order was also peculiar because his finding of contempt imposed no penalty.

The contempt emanated from an exchange Nottingham had with Judge Collins after receiving a transcript from an earlier hearing which had clearly been redacted, conspicuously in a manner which did not undermine a previous finding by Collins.  After Judge Collins refused to allow the “metadata” which Nottingham alleged would reveal time and date changes to the transcript to be released, Nottingham straightforwardly proposed that the judge was responsible for alterations which occur under his direction and did not back away from the serious implications.

Kiwisfirst was warned prior to publication of this article that despite taking pains to abide by all the secrecy orders of the New Zealand Courts, this article still may be found to be in contempt of one of them.